SELECTQUOTE, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT")
is entered into as of February __, 2000, by and among SelectQuote, Inc., a
Delaware corporation (the "COMPANY"), Marsh & McLennan Capital Technology
Venture Fund, L.P., a Delaware limited partnership, Marsh & McLennan Capital
Technology Professionals Venture Fund, L.P., a Delaware limited partnership,
Trident II, L.P., a Cayman Islands exempted limited partnership, Marsh &
McLennan Employees', Securities Company, L.P., a Cayman Islands exempted limited
partnership, Marsh & McLennan Capital Professionals Fund, L.P., a Cayman Islands
exempted limited partnership (collectively, the "MARSH PARTIES"); High Ridge
Capital Partners II, L.P., a Delaware limited partnership ("HIGH RIDGE");
McCutchen, Doyle, Brown & Enersen, LLP ("MDBE") and each of the additional
stockholders listed on Exhibit A (each, including the Marsh Parties and High
Ridge, an "INVESTOR" and collectively with the Marsh Parties and High Ridge, the
"INVESTORS"). This Agreement amends and restates, in its entirety, and
replaces, the Registration Rights Agreement dated December 23, 1999, by and
among the Company and the parties named therein (the "RIGHTS AGREEMENT").
RECITALS
WHEREAS, the Investors own shares of Series D Preferred Stock and shares
of Series E Preferred Stock of the Company (the "SHARES"); and
WHEREAS, the Company, the Marsh Parties and High Ridge are parties to an
Investment Agreement dated February ___, 2000 (the "INVESTMENT AGREEMENT"); and
WHEREAS, as a condition of entering into the Investment Agreement, High
Ridge and the Marsh Parties have requested that the Company extend to them
registration rights and other rights as set forth below; and
WHEREAS, the parties wish to provide the Investors with such registration
rights with respect to the Series E Preferred Stock.
NOW THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
mutually agree that the Rights Agreement is hereby amended and restated in its
entirety as follows:
1. GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" means any party hereto (other than the Company) owning of record
Registrable Securities that have not been sold to the public or any assignee of
record of such Registrable Securities in accordance with SECTION 2.10 hereof.
"INITIAL OFFERING" means the Company's first firm commitment underwritten
public offering registered under the Securities Act covering the offer and sale
of its Common Stock for the account of the Company in which (i) the per share
price is at least $5.00 (as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like with respect to such shares) and (ii) the
gross cash proceeds to the Company (before underwriting discounts, commissions
and fees) are at least $7,500,000.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (i) Common Stock of the Company owned of
record by the parties hereto; (ii) Common Stock of the Company issued or
issuable upon conversion of the Shares; (iii) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant, right, or
other security which is issued as) a dividend or other distribution with respect
to, or in exchange for, or in replacement of, such above-described securities;
and (iv) any Common Stock of the Company issued or issuable upon conversion of
the Debentures (as that term is defined in the Debenture Agreement).
Notwithstanding the foregoing, Registrable Securities shall not include any
securities sold by a person to the public either pursuant to a registration
statement or Rule 144 or sold in a private transaction in which the transferor's
rights under SECTION 2 of this Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of shares
determined by calculating the total number of shares of the Company's Common
Stock that are Registrable Securities and either (l) are then issued and
outstanding or (2) are issuable pursuant to then exercisable or convertible
securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with SECTIONS 2.2, 2.3 and 2.4 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, reasonable fees and disbursements of a
single special counsel for the Holders, blue sky fees and expenses and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
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"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"SEC" or "COMMISSION" means the Securities and Exchange Commission.
2. REGISTRATION; RESTRICTION ON TRANSFER
2.1 RESTRICTIONS ON TRANSFER.
2.1.1. Each Holder agrees not to make any disposition of all or
any portion of the Shares or Registrable Securities unless and until:
1. There is then in effect a registration statement
under the Securities Act covering such proposed disposition and such disposition
is made in accordance with such registration statement; or
2. (A) The transferee has agreed in writing to be bound
by this SECTION 2.1 and Articles VI and VII of the Investment Agreement, (B)
such Holder shall have notified the Company of the proposed disposition and
shall have furnished the Company with a detailed statement of the circumstances
surrounding the proposed disposition, and (C) such Holder shall have furnished
the Company with an opinion of outside or in-house counsel, reasonably
satisfactory to the Company, that such transfer or disposition without
registration of such shares under the Securities Act will not constitute a
violation of the Securities Act or any applicable state laws. It is agreed that
the Company will not require opinions of counsel for transactions made pursuant
to Rule 144 except in unusual circumstances.
3. Notwithstanding the provisions of paragraphs (1) and
(2) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its partners
or former partners in accordance with partnership interests, (B) a corporation
to its shareholders in accordance with their interests in the corporation, (C) a
limited liability company to its members or former members in accordance with
their interests in the limited liability company, (D) to the Holder's family
member or trust for the benefit of an individual Holder, or (E) to an affiliate
of the Holder, provided the transferee will be subject to the terms of this
SECTION 2.1 to the same extent as if he were an original Holder hereunder.
2.1.2. Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of the Agreement)
be stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state securities
laws, the Company's bylaws, or as provided elsewhere in this Agreement):
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
2.1.3. The Company shall be obligated to reissue promptly
unlegended certificates at the request of any Holder thereof if the Holder shall
have obtained an opinion of outside or in-house counsel (which outside counsel
may be counsel to the Company), reasonably acceptable to the Company to the
effect that the securities proposed to be disposed of may lawfully be so
disposed of without registration, qualification or legend.
2.1.4. Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate state securities authority authorizing such removal.
2.2 DEMAND REGISTRATION.
2.2.1. Subject to the conditions of this SECTION 2.2, if the
Company shall receive a written request from (1) the Holders of more than fifty
percent (50%) of the Registrable Securities then outstanding (the "INITIATING
HOLDERS;" such request, the "GENERAL DEMAND"), (2) High Ridge (such request, the
"HIGH RIDGE DEMAND"), or (3) the Marsh Parties (such request, the "MARSH PARTIES
DEMAND") that the Company file a registration statement under the Securities Act
covering the registration of Registrable Securities having an anticipated
aggregate offering price (before any underwriting discounts and commissions) to
the public in excess of $5,000,000 (or $7,500,000 if such requested registration
is the initial public offering of securities of the Company made pursuant to a
registration statement), then the Company shall promptly give written notice of
such request to all Holders of Registrable Securities, and subject to the
limitations of this SECTION 2.2, use its diligent best efforts to effect, as
soon as practicable, the registration under the Securities Act of all
Registrable Securities that the Holders request to be registered.
2.2.2. Unless the request under this Section 2.2 is made after the
Company's Initial Offering, the Registrable Securities shall be distributed only
by means of a firm commitment underwriting. If the Initiating Holders, the Marsh
Parties or High Ridge, as appropriate, 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 to this Section 2.2
and the Company shall include such information in the written notice referred to
in Section 2.2.1. In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders, the Marsh Parties or High
Ridge, as appropriate, and such Holder) to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by a majority in interest of the
Initiating Holders, the Marsh Parties or High Ridge, as appropriate, (which
underwriter or underwriters shall be reasonably acceptable to the
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Company). Notwithstanding any other provision of this Section 2.2, if the
underwriter advises the Company that marketing factors require a limitation of
the number of securities to be underwritten (including Registrable Securities)
pursuant to a General Demand, then the Company shall so advise all Holders of
Registrable Securities which would otherwise be underwritten pursuant hereto,
and the number of shares that may be included in the underwriting shall be
allocated to the Holders of such Registrable Securities on a pro rata basis
based on the number of Registrable Securities held by all such Holders
(including the Initiating Holders, High Ridge and the Marsh Parties).
Notwithstanding any other provision of this Section 2.2, if the required
limitation of the number of securities to be underwritten is in connection with
a High Ridge Demand or a Marsh Parties Demand, then none of the Registrable
Securities held by High Ridge or the Marsh Parties shall be excluded from such
registration until the number of shares that may be included in the underwriting
by the other Holders, excluding High Ridge and the Marsh Parties, has been
reduced to zero, and the number of shares of such other Holders to be included
in the underwriting shall be determined on a pro rata basis, as provided above.
If the required limitation of the number of securities to be underwritten in
connection with a High Ridge Demand or a Marsh Demand is such that all
Registrable Securities held by High Ridge and the Marsh Parties may not be
included in the underwriting, then the number of shares that may be included in
the underwriting shall be allocated to High Ridge and the Marsh Parties on a pro
rata basis based upon the number of Registrable Securities held by each of them.
Any Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from the registration.
2.2.3. The Company shall not be required to effect a registration
pursuant to this Section 2.2:
1. prior to (A) August 26, 2000, or (B) six (6) months after
the date of the Company's Initial Offering, whichever is earlier; or
2. pursuant to a General Demand, after the Company has
effected two (2) registrations pursuant to General Demands, pursuant to a High
Ridge Demand after the Company has effected one (1) registration pursuant to a
High Ridge Demand and pursuant to a Marsh Parties Demand after the Company has
effected one (1) registration pursuant to a Marsh Parties Demand as set forth in
this Section 2.2, and such registrations have been declared or ordered
effective; or
3. during the period starting with the date of filing of, and
ending on the date ninety (90) days following the effective date of the
registration statement pertaining to the Initial Offering, provided that the
Company is making reasonable and good faith efforts to cause such registration
statement to become effective; or
4. if within thirty (30) days of receipt of a written request
from Initiating Holders, High Ridge or the Marsh Parties, as appropriate,
pursuant to Section 2.2.1, the Company gives notice to the Holders of the
Company's intention to make its Initial Offering within ninety (90) days; or
5. if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.2, a certificate signed by the
Chairman of the Board stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such registration statement to be effected at such time, in
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which event the Company shall have the right to defer such filing for a period
of not more than ninety (90) days after receipt of the request of the Initiating
Holders, High Ridge or the Marsh Parties, as appropriate; provided that such
right to delay a request shall be exercised by the Company no more than twice in
any one-year period.
2.3 PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other transactions under
Rule 145 of the Securities Act) and will afford each such Holder an opportunity
to include in such registration statement all or part of such Registrable
Securities held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by it
shall, within fifteen (15) days after the above-described notice from the
Company, so notify the Company in writing. Such notice shall state the intended
method of disposition of the Registrable Securities by such Holder. If a Holder
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent such registration statement or registration statements as may be
filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
2.3.1. UNDERWRITING. If the registration statement under which
the Company gives notice under this SECTION 2.3 is for an underwritten offering,
the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder to be included in a registration pursuant to
this SECTION 2.3 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of the Agreement, if the underwriter determines in good faith that
marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to the Holders on a pro rata
basis based on the total number of Registrable Securities held by the Holders;
and third, to any stockholder of the Company (other than a Holder) on a pro rata
basis. No such reduction shall reduce the securities being offered by the
Company for its own account to be included in the registration and underwriting,
and in no event shall the amount of securities of the selling Holders included
in the registration be reduced below twenty-five percent (25%) of the total
amount of securities included in such registration, unless such offering is the
Initial Offering and such registration does not include shares of any other
selling stockholders, in which event any or all of the Registrable Securities of
the Holders may be excluded in accordance with the immediately preceding
sentence. In no event will shares of any other selling stockholder be included
in such registration where inclusion of such shares would reduce the number of
shares which may be included by the Holders, without the written consent of
Holders of more than fifty percent (50%) of the Registrable Securities proposed
to be sold in the offering.
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2.3.2 RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated or withdraw any
registration initiated by it under this SECTION 2.3 prior to the effectiveness
of such registration, whether or not any Holder has elected to include
securities in such registration. The Registration Expenses of such withdrawn
registration shall be borne by the Company in accordance with SECTION 2.5
hereof.
2.4 FORM S-3 REGISTRATION. Following the Initial Offering, the
Company shall use its best efforts to qualify for registration on Form S-3 for
secondary sales. In case the Company shall receive from any Holder or Holders of
Registrable Securities a written request or requests that the Company effect a
registration on Form S-3 (or any successor to Form S-3) or any similar
short-form registration statement and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:
2.4.1. promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders of Registrable
Securities; and
2.4.2. as soon as practicable, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such Holder's
or Holders' Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any other Holder or
Holders joining in such request as are specified in a written request given
within fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this SECTION 2.4:
1. if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders; or
2. if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $500,000; or
3. if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of Directors of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
Registration to be effected at such time, in which event the Company 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
Holder or Holders under this SECTION 2.4; provided, that such right to delay a
request shall be exercised by the Company no more than twice in any one-year
period; or
4. in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
2.4.3. Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. All Selling Expenses
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incurred in connection with registrations requested pursuant to this SECTION 2.4
shall be paid by the selling Holders pro rata in proportion to the number of
shares sold by each.
2.4.4. The rights of holders to require registration pursuant to
this Section 2.4 shall be in addition to the rights granted under Section 2.2
hereof and no request made pursuant to this Section 2.4 shall be deemed a
request under Section 2.2 hereof.
2.5 EXPENSES OF REGISTRATION. Except as specifically provided herein,
all Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this SECTION 2 shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
hereunder, shall be borne by the holders of the securities so registered pro
rata on the basis of the number of shares so registered. The Company shall not,
however, be required to pay for expenses of any registration proceeding begun
pursuant to SECTION 2.2, the request of which has been subsequently withdrawn by
the Initiating Holders, High Ridge or the Marsh Parties, as appropriate, unless
(a) the withdrawal is based upon material adverse information concerning the
Company of which the Initiating Holders, High Ridge or the Marsh Parties, as
appropriate, were not aware at the time of such request, or (b) the Holders of a
majority of Registrable Securities, High Ridge or the Marsh Parties, as
appropriate, agree to forfeit their right to one General Demand, one High Ridge
Demand or one Marsh Parties Demand, as appropriate, pursuant to SECTION 2.2 in
which event such right shall be forfeited by all Holders, High Ridge or the
Marsh Parties, as appropriate. If the Holders are required to pay the
Registration Expenses, such expenses shall be borne by the holders of securities
(including Registrable Securities) requesting such registration in proportion to
the number of shares for which registration was requested. If the Company is
required to pay the Registration Expenses of a withdrawn offering pursuant to
clause (a) above, then the Holders shall not forfeit their rights pursuant to
SECTION 2.2 to a General Demand, a High Ridge Demand or a Marsh Parties Demand,
as appropriate.
2.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
2.6.1. Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration 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 up to ninety (90) days or, if earlier,
until the Holder or Holders have completed the distribution related thereto.
2.6.2. Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
2.6.3. Furnish to the Holders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
2.6.4. Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be
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reasonably requested by the Holders, provided that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions.
2.6.5. In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
2.6.6. Notify each Holder of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
2.6.7. Furnish, at the request of a majority in interest of the
Holders participating in the registration, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated as of 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 and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities, and (ii) a letter
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders requesting registration of
Registrable Securities.
2.7 TERMINATION OF REGISTRATION RIGHTS. A Holder's registration
rights shall expire if (i) the Company has completed its Initial Offering and
has a class of securities registered under the Exchange Act, (ii) such Holder
(together with its affiliates, partners or members and former partners or
members) holds less than 2% of the Company's outstanding Common Stock (treating
all shares of convertible Preferred Stock on an as-if converted to Common Stock
basis), and (iii) all Registrable Securities held by such Holder (and all
affiliates, partners or members and former partners or members) may be sold
under Rule 144 during any ninety (90) day period (without giving effect to the
provisions of Rule 144(e)).
2.8 DELAY OF REGISTRATION; FURNISHING INFORMATION.
2.8.1. No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this SECTION 2.
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2.8.2. It shall be a condition precedent to the obligations of the
Company to take any action pursuant to SECTION 2.2, 2.3 or 2.4 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
2.9 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under SECTIONS 2.2, 2.3 or 2.4:
2.9.1. To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the partners, members, officers, directors and
legal counsel (including Holder's own in-house counsel) of each Holder, any
underwriter (as defined in the Securities Act) for such Holder and each person,
if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any of the following statements, omissions or violations
(collectively a "VIOLATION") by the Company: (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will reimburse each such
Holder, partner, member, officer or director, underwriter or controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided however, that the indemnity agreement contained in this SECTION 2.9.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, partner, member,
officer, director, underwriter or controlling person of such Holder.
2.9.2. To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration qualifications or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, its officers,
and legal counsel and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, members, directors or officers or any person who controls such Holder,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, underwriter or
other such Holder, or partner, member, director, officer or controlling person
of such other Holder may become subject under the Securities Act, the Exchange
Act or other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
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Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Holder under an instrument duly executed by such Holder and
stated to be specifically for use in connection with such registration; and each
such Holder will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person, underwriter or
other Holder, or partner, member, officer, director or controlling person of
such other Holder in connection with investigating or defending any such loss,
claim, damage, liability or action if it is judicially determined that there was
such a Violation; provided, however, that the indemnity agreement contained in
this SECTION 2.9.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this SECTION 2.9
exceed the net proceeds from the offering received by such Holder.
2.9.3. Promptly after receipt by an indemnified party under this
SECTION 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this SECTION 2.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party if the indemnified party shall have reasonably
concluded that representation of such indemnified 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 proceeding, in which case the fees and
expenses of counsel shall be at the expense of the indemnifying party. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, if materially prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this SECTION 2.9 to the extent that
such indemnified party is damaged by such failure. Any failure so to deliver
such notice to the indemnifying party will not relieve such indemnifying party
of any liability that it may have to any indemnified party otherwise than under
this SECTION 2.9.
2.9.4. If the indemnification provided for in this SECTION 2.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall, to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by a
Holder hereunder exceed the proceeds from the offering received by such Holder.
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2.9.5. The obligations of the Company and Holders under this
SECTION 2.9 shall survive completion of any offering of Registrable Securities
in a registration statement and the termination of this Agreement. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation. In the
event any offering of Registrable Securities is underwritten, and the
underwriting agreement provides for indemnification and/or contribution by the
Company and the Holders offering securities thereunder, the indemnification
and/or contribution obligations of the Company and the Holders hereunder shall
in no event exceed the obligations of the parties set forth in such underwriting
agreement.
2.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this SECTION 2 may be
assigned by a Holder to a transferee or assignee of Registrable Securities that
acquires at least thirty-two thousand (32,000) shares of Registrable Securities
(as adjusted for stock splits and combinations); provided, however, (A) the
transferor shall, within ten (10) days after such transfer, furnish to the
Company written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being
assigned and (B) such transferee shall agree to be subject to all restrictions
set forth in this Agreement.
2.11 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this SECTION 2
may be amended and the observance thereof may be 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 more than fifty percent (50%)
of the outstanding Registrable Securities; provided, however, that any amendment
or waiver which would discriminate among, or treat differently, Holders of the
same class of Registrable Securities or affect the rights of High Ridge in
connection with a High Ridge Demand or affect the rights of the Marsh Parties in
connection with a Marsh Parties Demand, shall require the written consent of the
parties so affected. Subject to the provisions of Section 2.12 hereof, the
Company may include purchasers of other series of preferred stock of the Company
as Investors hereunder, without the prior consent of the Investors. Any
amendment or waiver effected in accordance with this SECTION 2.11 shall be
binding upon each Holder and the Company. By acceptance of any benefits under
this SECTION 2, Holders of Registrable Securities hereby agree to be bound by
the provisions hereunder.
2.12 LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. After the date of
this Agreement, the Company shall not, without the prior written consent of the
Holders of more than fifty percent (50%) of the Registrable Securities, High
Ridge or the Marsh Parties, as appropriate, enter into any agreement with any
holder or prospective holder of any securities of the Company that would grant
such holder registration rights that are not subordinate to those granted to the
Holders, High Ridge or the Marsh Parties, as appropriate, hereunder.
2.13 "MARKET STAND-OFF" AGREEMENT. If requested by the Company and the
representative of the underwriters of Common Stock (or other securities) of the
Company, each Holder shall not sell or otherwise transfer or dispose of any
shares of Common Stock (or other securities) of the Company held by such Holder
(other than those included in the registration) for a period specified by the
representative of the underwriters not to exceed one hundred eighty (180)
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days following the effective date of a registration statement of the Company
filed under the Securities Act, provided that:
1. such agreement shall apply only to the Company's Initial
Offering; and
2. all officers and directors of the Company and holders of at
least one percent (1%) of the Company's voting securities enter into similar
agreements.
The obligations described in this SECTION 2.13 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of said one
hundred eighty (180) day period.
2.14 RULE 144 REPORTING. With a view to making available to the
Holders the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
A. Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public;
B. File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Exchange Act;
C. So long as a Holder owns any Registrable Securities, furnish to such
Holder forthwith upon request: a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 of the Securities
Act, and of the Exchange Act (at any time after it has become subject to such
reporting requirements); a copy of the most recent annual or quarterly report of
the Company; and such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
3. MISCELLANEOUS
3.1 GOVERNING LAW. This Agreement is to be construed in accordance
with and governed by the internal laws of the State of California (as permitted
by Section 1646.5 of the California Civil Code or any similar successor
provision) without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the
State of California to the rights and duties of the parties, except to the
extent that United States federal law preempts California law, in which case
United States federal law shall apply, without reference to conflict of law
principles.
3.2 SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by any Holder and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument
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delivered by or on behalf of the Company pursuant hereto in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties by the Company hereunder solely as of the date of such certificate or
instrument.
3.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, including without limitation Sections 2.10 and 3.6.3, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors, and administrators of the parties hereto and shall
inure to the benefit of and be enforceable by each person who shall be a holder
of Registrable Securities from time to time; provided, however, that prior to
the receipt by the Company of adequate written notice of the transfer of any
Registrable Securities specifying the full name and address of the transferee,
the Company may deem and treat the person listed as the holder of such shares in
its records as the absolute owner and holder of such shares for all purposes,
including the payment of dividends or any redemption price.
3.4 ENTIRE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto, and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and no party shall be liable or bound to any other in any manner
by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
3.5 SEVERABILITY. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
3.6 AMENDMENT AND WAIVER.
3.6.1. Except as otherwise expressly provided, this Agreement may
be amended or modified only upon the written consent of the Company and the
holders of more than fifty percent (50%) of the Registrable Securities.
3.6.2. Except as otherwise expressly provided, the obligations of
the Company and the rights of the Holders under this Agreement may be waived
only with the written consent of the holders of more than fifty percent (50%) of
the Registrable Securities.
3.6.3. Notwithstanding the foregoing, this Agreement may be
amended only with the written consent of the Company to include additional
purchasers of Shares as "Investors," "Holders" and parties hereto.
3.7 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default, or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default, or noncompliance, or any acquiescence therein, or of any
similar breach, default, or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default, or noncompliance under the Agreement
or any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
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3.8 NOTICES. All notices required or pertained hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the 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. All communications shall be sent to the
party to be notified at the address as set forth on the signature page hereof or
at such other address as such party may designate by ten (10) days advance
written notice to the other parties hereto.
3.9 ATTORNEYS' FEES. In the event that any dispute among the parties
to this Agreement should result in litigation, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
3.10 TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement as of the date set forth in the first
paragraph hereof.
COMPANY:
SELECTQUOTE, a Delaware corporation
By:
------------------------------
Steven H. Gerber, President
INVESTORS:
AIG LIFE INSURANCE COMPANY, a ALLSTATE LIFE INSURANCE COMPANY, an
Delaware corporation Illinois insurance company
By: By:
------------------------------ ------------------------------
Title: Title:
---------------------------- ----------------------------
SECURITY CONNECTICUT LIFE INSURANCE NORTH AMERICAN COMPANY FOR LIFE AND
COMPANY, a Connecticut corporation HEALTH INSURANCE, an Illinois
corporation
By: By:
------------------------------ ------------------------------
Title: Title:
---------------------------- ----------------------------
HIGH RIDGE CAPITAL PARTNERS II, L.P. PROTECTIVE LIFE INSURANCE COMPANY
By: By:
------------------------------ ------------------------------
Title: Title:
---------------------------- ----------------------------
PROTECTIVE LIFE CORPORATION MARSH & MCLENNAN CAPITAL TECHNOLOGY
VENTURE FUND, L.P.
By: By:
------------------------------ ------------------------------
Title: Title:
---------------------------- ----------------------------
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MARSH & MCLENNAN CAPITAL TECHNOLOGY TRIDENT II, L.P.
PROFESSIONALS VENTURE FUND, L.P.
By: By:
------------------------------ ------------------------------
Title: Title:
---------------------------- ----------------------------
MARSH & MCLENNAN EMPLOYEES' MARSH & MCLENNAN CAPITAL PROFESSIONALS
SECURITIES COMPANY, L.P. FUND, L.P.
By: By:
------------------------------ ------------------------------
Title: Title:
---------------------------- ----------------------------
MCCUTCHEN, DOYLE, BROWN &ENERSEN,
LLP
By:
------------------------------
Title:
----------------------------
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EXHIBIT A
INVESTORS
AIG Life Insurance Company
Allstate Life Insurance Company
High Ridge Capital Partners II, L.P.
Marsh & McLennan Capital Professionals Fund, L.P.
Marsh & McLennan Capital Technology Professionals Venture Fund, L.P.
Marsh & McLennan Capital Technology Venture Fund, L.P.
Marsh & McLennan Employees' Securities Company, L.P.
McCutchen, Doyle, Brown & Enersen, LLP
North American Company for Life and Health Insurance
Protective Life Insurance Company
Protective Life Corporation
Security Connecticut Life Insurance Company
Trident II, L.P.
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