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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
DATED DECEMBER 30, 1999,
AMONG
SCC TECHNOLOGIES, INC.
AND
THE STOCKHOLDERS NAMED HEREIN
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT dated December 30, 1999,
among SCC TECHNOLOGIES, INC., a Delaware corporation (the "Company"), DBV
Investments, L.P., a Delaware limited partnership, MSD Portfolio L.P. -
Investments, a Delaware limited partnership, Vermeer Investments, LLC, a
Delaware limited liability company, Black Marlin Investments LLC, a Delaware
limited liability company, INSIGHT CAPITAL PARTNERS II, L.P., a Delaware limited
partnership, INSIGHT CAPITAL PARTNERS (CAYMAN) II, L.P., a Cayman Island limited
partnership, INSIGHT CAPITAL PARTNERS III, L.P., a Delaware limited partnership,
INSIGHT CAPITAL PARTNERS III-COINVESTORS, L.P., a Delaware limited partnership,
INSIGHT CAPITAL PARTNERS (CAYMAN) III, L.P., a Cayman Islands limited
partnership, WI SOFTWARE INVESTORS LLC, a Delaware limited liability company,
and IMPRIMIS SB, L.P., a Delaware limited partnership (collectively, the
"Investors"), and Alan Hyman and Mark Tilly (together, Messrs. Hyman and Tilly
are referred to as the "Founders").
PREAMBLE
WHEREAS, Each Investor currently owns (or has the right to acquire through
the conversion of convertible preferred stock) the number of shares of Common
Stock, $0.0001 par value (the "Common Stock"), of the Company set forth opposite
the name of such Investor on Schedule I;
WHEREAS, the Company, certain Investors and the Founders are parties to a
registration rights agreement, dated April 15, 1998 (the "Registration Rights
Agreement"); and
WHEREAS, such parties deem it advisable to amend and restate the
Registration Rights Agreement and to make the non-party Investors parties
thereto.
ACCORDINGLY, the parties agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect from time to time.
"OTHER SHARES" means at any time those shares of Common Stock which do not
constitute Primary Shares or Registrable Shares.
"PRIMARY SHARES" means at any time the authorized but unissued shares of
Common Stock or shares of Common Stock held by the Company in its treasury.
"REGISTRABLE SHARES" means at any time, with respect to any Stockholder,
the shares of Common Stock held by such Stockholder which constitute Restricted
Shares.
"REGISTRATION DATE" means the date upon which the registration statement
pursuant to which the Company shall have initially registered shares of Common
Stock under the Securities Act (not including the registration of shares of
Common Stock pursuant to Form S-8 or similar registration form) for sale to the
public shall have been declared effective.
"RESTRICTED SHARES" means at any time, with respect to any Stockholder, the
shares of Common Stock, any other securities which by their terms are
exercisable or exchangeable for or convertible into Common Stock or other
securities which are so exercisable or convertible and any securities received
in respect thereof, which are held by such Stockholder and which have not
previously been sold to the public pursuant to a registration statement under
the Securities Act or pursuant to Rule 144.
"RULE 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto.
"SECURITIES ACT" means the Securities Act of 1933, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"STOCKHOLDERS" means the (i) Investors and (ii) any person or entity that
acquires Restricted Shares constituting at least 5% of the issued and
outstanding Common Stock (or Common Stock equivalent).
"TRANSFER" means any disposition of any Restricted Shares or of any
interest therein which constitutes a sale within the meaning of the Securities
Act, other than any disposition pursuant to an effective registration statement
under the Securities Act complying with all applicable state securities and
"blue sky" laws.
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SECTION 2. REQUIRED REGISTRATION.
At any time after the Registration Date, if the Company shall be requested
by any Investors holding Restricted Shares (based upon Common Stock equivalents)
constituting at least 20% of the then-outstanding Restricted Shares held by all
Investors to effect a registration under the Securities Act of Registrable
Shares in accordance with this Section, then the Company shall promptly give
written notice of such proposed registration to all holders of Restricted Shares
and shall offer to include in such proposed registration any Registrable Shares
requested to be included in such proposed registration by such holders who
respond in writing to the Company's notice within 30 days after delivery of such
notice (which response shall specify the number of Registrable Shares proposed
to be included in such registration). The Company shall promptly use its best
efforts to effect such registration under the Securities Act of the Registrable
Shares which the Company has been so requested to register; PROVIDED, HOWEVER,
that the Company shall not be obligated to effect any registration under the
Securities Act except in accordance with the following provisions:
(a) the Company shall not be obligated to file (i) more than two
registration statements in total or (ii) more than one registration statement
within any consecutive 360-day period, which registration statement(s) were
initiated pursuant to this Section and become effective or which are rescinded
by the Investors without reimbursement referred to in the last paragraph of this
Section;
(b) the Company shall not be obligated to file any registration
statement during any period in which any other registration statement (other
than on Form S-4 or Form S-8 promulgated under the Securities Act or any
successor forms thereto) pursuant to which Primary Shares are to be or were sold
has been filed and not withdrawn by the Company or has been declared effective
within the prior 90 days;
(c) the Company may delay the filing or effectiveness of any
registration statement for a period not to exceed 180 days after the date of a
request for registration pursuant to this Section 2 if the Company shall furnish
to the Stockholders requesting such registration a certificate signed by the
President of the Company setting forth the reasons why, in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement (provided that the Company may not utilize the right set
forth in this clause (c) more than once in any 12-month period);
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(d) with respect to any registration pursuant to this Section, the
Company may include in such registration any Primary Shares or Other Shares;
PROVIDED, HOWEVER, that if the managing underwriter advises the Company that the
inclusion of all Registrable Shares, Primary Shares and Other Shares proposed to
be included in such registration would interfere with the successful marketing
(including pricing) of all such securities, then the number of Registrable
Shares, Primary Shares and Other Shares proposed to be included in such
registration shall be included in the following order:
(i) first, the Registrable Shares held by Investors, and by all
other Stockholders hereafter acquiring Registrable Shares ("Subsequent
Stockholders') and granted by the Company rights to require registration
similar to the rights granted to the Investors under this Section 2, PRO
RATA based upon the number of Restricted Shares (based upon Common Stock
equivalents) owned by each Investor and such other Stockholders at the time
of such registration;
(ii) second, the Primary Shares; and
(iii) third, the Other Shares.
A requested registration under this Section may be rescinded prior to
effectiveness by written notice to the Company by the Investors initiating such
request; such rescinded registration shall not count as a registration statement
initiated pursuant to this Section for purposes of paragraph (a) above if the
Stockholders initiating such request shall have reimbursed the Company for all
out-of-pocket expenses incurred by the Company in connection with such rescinded
registration.
SECTION 3. PIGGYBACK REGISTRATION.
(a) If the Company at any time proposes for any reason to register Primary
Shares or Other Shares under the Securities Act (other than on Form S-4 or Form
S-8 promulgated under the Securities Act or any successor forms thereto or other
than in connection with an exchange offer or offering solely to the Company's
stockholders ), it shall promptly give written notice to each Investor of its
intention to so register the Primary Shares or Other Shares and, upon the
written request, given within 30 days after delivery of any such notice by the
Company, of any Investor to include in such registration Registrable Shares held
by such Investor (which request shall specify the number of Registrable Shares
proposed to be included in such registration), the Company shall use its best
efforts to cause all such Registrable Shares to be included in such registration
on the same terms and conditions as the securities otherwise
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being sold in such registration; PROVIDED, HOWEVER, that if the managing
underwriter advises the Company that the inclusion of all Registrable Shares or
Other Shares proposed to be included in such registration would interfere with
the successful marketing (including pricing) of the Primary Shares proposed to
be registered by the Company, then the number of Primary Shares, Registrable
Shares and Other Shares proposed to be included in such registration shall be
included in the following order:
(i) first, the Primary Shares;
(ii) second, the Registrable Shares held by the Investors and
Subsequent Stockholders, PRO RATA based upon the number of Restricted Shares
(based upon Common Stock equivalents) owned by each such Stockholder at the time
of such registration; and
(iii) third, the Other Shares.
(b) Each Investor who has requested that Registrable Shares be included in
a registration pursuant to Section 3(a) hereof, shall be bound by the Company's
choice of managing underwriter stated in the Company's notice and to execute an
underwriting agreement with such underwriter that is (i) reasonably satisfactory
to such Investor and (ii) in customary form.
SECTION 4. HOLDBACK AGREEMENT.
If the Company at any time shall register shares of Common Stock under the
Securities Act (including any registration pursuant to Sections 2 or 3) for sale
to the public and the managing underwriter for such registration shall request,
the Investors shall not sell, make any short sale of, grant any option for the
purchase of, or otherwise dispose of any Restricted Shares (other than those
shares of Common Stock included in such registration) without the prior written
consent of the Company for a period designated by the Company in writing to the
Investors, which period shall not begin more than 10 days prior to the
effectiveness of the registration statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the effective
date of such registration statement; PROVIDED that the Investors shall be bound
by this provision only if, and to the extent, the Founders and the executive
officers of the Company owning Common Stock and all other Stockholders whose
Registrable Shares are included in such Registration Statement shall be bound by
such a provision.
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SECTION 5. PREPARATION AND FILING.
If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the registration
of any Registrable Shares, the Company shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement that registers
such Registrable Shares to become and remain effective for a period of 180 days
or until all of such Registrable Shares have been disposed of (if earlier);
(b) furnish, at least five business days before filing a registration
statement that registers such Registrable Shares, a prospectus relating thereto
or any amendments or supplements relating to such a registration statement or
prospectus, to one counsel selected by the holders of a majority of such
Registrable Shares then being registered for sale (the "Selling Stockholders'
Counsel"), copies of all such documents proposed to be filed (it being
understood that such five-business-day period need not apply to successive
drafts of the same document proposed to be filed so long as such successive
drafts are supplied to such counsel in advance of the proposed filing by a
period of time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for at least a
period of 180 days or until all of such Registrable Shares have been disposed of
(if earlier) and to comply with the provisions of the Securities Act with
respect to the sale or other disposition of such Registrable Shares;
(d) notify in writing the Selling Stockholders' Counsel promptly (i) of
the receipt by the Company of any notification with respect to any comments by
the Commission with respect to such registration statement or prospectus or any
amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) of the receipt by the Company of any notification with respect to
the issuance by the Commission of any stop order suspending the effectiveness of
such registration statement or prospectus or any amendment or supplement thereto
or the initiation or threatening of any proceeding for that purpose and (iii) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of such Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purposes;
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(e) use its best efforts to register or qualify such Registrable Shares
under such other securities or blue sky laws of such jurisdictions as any seller
of Registrable Shares reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable such seller of
Registrable Shares to consummate the disposition in such jurisdictions of the
Registrable Shares owned by such seller; PROVIDED, HOWEVER, that the Company
will not be required to qualify generally to do business, subject itself to
general taxation or consent to general service of process in any jurisdiction
where it would not otherwise be required so to do but for this paragraph (e);
(f) furnish to each seller of such Registrable Shares such number of
copies of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as such seller of Registrable Shares may reasonably request in
order to facilitate the public sale or other disposition of such Registrable
Shares;
(g) use its best efforts to cause such Registrable Shares to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable the
seller or sellers thereof to consummate the disposition of such Registrable
Shares;
(h) notify on a timely basis each seller of such Registrable Shares at any
time when a prospectus relating to such Registrable Shares is required to be
delivered under the Securities Act within the appropriate period mentioned in
paragraph (a) of this Section, 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 light of the circumstances then existing and, at the request
of such seller, prepare and furnish to such seller a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the offerees of such shares, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(i) make available for inspection by any seller of such Registrable
Shares, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter (collectively, the "Inspectors"), all pertinent
financial and other records, pertinent corporate documents and
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properties of the Company (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all information
(together with the Records, the "Information") reasonably requested by any such
Inspector in connection with such registration statement. Any of the Information
which the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary to avoid
or correct a misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (iii) such Information has been made
generally available to the public. The seller of Registrable Shares agrees that
it will, upon learning that disclosure of such Information is sought in a court
of competent jurisdiction, give notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent disclosure of
the Information deemed confidential;
(j) use its best efforts to obtain from its independent certified public
accountants "comfort" letters in customary form and at customary times and
covering matters of the type customarily covered by comfort letters;
(k) use its best efforts to obtain from its counsel an opinion or opinions
in customary form;
(l) provide a transfer agent and registrar (which may be the same entity
and which may be the Company) for such Registrable Shares;
(m) issue to any underwriter to which any seller of Registrable Shares may
sell shares in such offering certificates evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities exchange on
which any shares of the Common Stock are listed or, if the Common Stock is not
listed on a national securities exchange, use its best efforts to qualify such
Registrable Shares for inclusion on the automated quotation system of the
National Association of Securities Dealers, Inc. (the "NASD") or such national
securities exchange as the holders of a majority of such Registrable Shares
shall request;
(o) otherwise use its best efforts to comply with all applicable rules and
regulations of the Commission and make available to its securityholders, as soon
as reasonably practicable, earnings statements (which need not be audited)
covering a period of 12 months
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beginning within three months after the effective date of the registration
statement, which earnings statements shall satisfy the provisions of Section
10(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary to effect the
registration of such Registrable Shares contemplated hereby.
SECTION 6. EXPENSES.
All expenses incurred by the Company in complying with Section 5,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), fees and expenses of complying with
securities and blue sky laws, printing expenses, and reasonable fees and
expenses of the Company's counsel and accountants, and the reasonable fees and
expenses of the Selling Stockholders' Counsel shall be paid by the Company;
PROVIDED, HOWEVER, that all underwriting discounts and selling commissions
applicable to the Registrable Shares, and all fees and expenses of any special
or interim audit for any registration initiated by Stockholders pursuant to
Section 2, shall be borne by the seller or sellers thereof, in proportion to the
number of Registrable Shares sold by such seller or sellers.
SECTION 7. INDEMNIFICATION.
In connection with any registration of any Registrable Shares under the
Securities Act pursuant to this Agreement, the Company shall indemnify and hold
harmless the seller of such Registrable Shares, its officers and directors, each
underwriter, broker or any other person acting on behalf of such seller and each
other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several, (or actions in respect thereof) to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or, with respect to any prospectus, necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or any violation by the Company of the Securities Act or state
securities or blue
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sky laws applicable to the Company and relating to action or inaction required
of the Company in connection with such registration or qualification under such
state securities or blue sky laws; and shall reimburse such seller, such officer
or director, such underwriter, such broker or such other person acting on behalf
of such seller and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
seller or underwriter specifically for use in the preparation thereof.
In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each seller of Registrable Shares
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in the preceding paragraph of this Section) the Company, each director
of the Company, each officer of the Company who shall sign such registration
statement, each underwriter, broker or other person acting on behalf of such
seller, each person who controls any of the foregoing persons within the meaning
of the Securities Act and each other seller of Registrable Shares under such
registration statement with respect to any statement or omission from such
registration statement, any preliminary prospectus or final prospectus contained
therein or otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, if such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company or such
underwriter through an instrument duly executed by such seller or underwriter
specifically for use in connection with the preparation of such registration
statement, preliminary prospectus, final prospectus, amendment, supplement or
document; PROVIDED, HOWEVER, that the obligation to indemnify will be several,
not joint and several, among such sellers of Registrable Shares, and the maximum
amount of liability in respect of such indemnification shall be in proportion to
and limited to, in the case of each seller of Registrable Shares, an amount
equal to the net proceeds actually received by such seller from the sale of
Registrable Shares effected pursuant to such registration.
The indemnification required by this Section 7 will be made by periodic
payments during the course of the investigation or defense, as and when bills
are received or expenses
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incurred, subject to prompt refund in the event any such payments are determined
not to have been due and owing hereunder.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof.
The indemnification provided for under this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of the
indemnified party or any officer, director or controlling person of such
indemnified party and will survive the transfer of securities.
If the indemnification provided for in this Section is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which 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 reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged 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. The Company and
the sellers of Registrable Shares agree that it would not be just and equitable
if contributions pursuant to this paragraph were determined by PRO RATA
allocation or by any other method of allocation which did not take into account
the equitable considerations referred to herein. The amount paid or payable to
an indemnified party as a result of the losses, claims, damages, liabilities or
expenses referred to above shall be deemed to include, subject to the limitation
set forth in the fourth paragraph of this Section
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7, any legal or other expenses reasonably incurred in connection with
investigating or defending the same. Notwithstanding the foregoing, in no event
shall the amount contributed by a seller of Registrable Shares exceed the
aggregate net offering proceeds received by such seller from the sale of its
Registrable Shares.
SECTION 8. UNDERWRITING AGREEMENT.
Notwithstanding the provisions of Sections 4, 5, 6 and 7, to the extent
that the Company and the Stockholders selling Registrable Shares in a proposed
registration shall enter into an underwriting or similar agreement, which
agreement contains provisions covering one or more issues addressed in such
Sections, the provisions contained in such Sections addressing such issue or
issues shall be superseded with respect to such registration by such other
agreement.
SECTION 9. INFORMATION BY HOLDER.
Each Stockholder selling Registrable Shares in a proposed registration
shall furnish to the Company such written information regarding such holder and
the distribution proposed by such Stockholder as the Company may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 10. EXCHANGE ACT COMPLIANCE.
From and after the Registration Date or such earlier date as a registration
statement filed by the Company pursuant to the Exchange Act relating to any
class of the Company's securities shall have become effective, the Company shall
comply with all of the reporting requirements of the Exchange Act and with all
other public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Common Stock. The
Company shall cooperate with each Stockholder in supplying such information as
may be necessary for such Stockholder to complete and file any information
reporting forms presently or hereafter required by the Commission as a condition
to the availability of Rule 144.
SECTION 11. NO CONFLICT OF RIGHTS.
The Company represents and warrants to the Stockholders that the
registration rights granted to the Stockholders hereby do not conflict with any
other registration rights granted by
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the Company. The Company shall not, after the date hereof, grant any
registration rights which conflict with or impair the registration rights
granted hereby.
SECTION 12. RESTRICTION ON TRANSFER.
(a) The Restricted Shares shall not be transferable except upon the
conditions specified in this Section, which conditions are intended only to
insure compliance with the provisions of the Securities Act.
(b) Each certificate representing Restricted Shares shall (unless
otherwise permitted by the provisions of paragraph (c) and (d) below) be stamped
or otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT. ADDITIONALLY, THE
TRANSFER OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS SPECIFIED IN
SECTION 12 OF THE REGISTRATION RIGHTS AGREEMENT DATED DECEMBER 30, 1999,
AMONG SCC TECHNOLOGIES, INC., AND CERTAIN OF ITS SHAREHOLDERS, AND NO
TRANSFER OF THESE SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
FROM THE SECRETARY OF SCC TECHNOLOGIES, INC."
(c) The holder of any Restricted Shares by acceptance thereof agrees,
prior to any Transfer of any Restricted Shares, to give written notice to the
Company of such holder's intention to effect such Transfer and to comply in all
other respects with the provisions of this Section. Each such notice shall
describe the manner and circumstances of the proposed Transfer. Upon request by
the Company, the holder delivering such notice shall deliver a written opinion,
addressed to the Company, of counsel for the holder of Restricted Shares,
stating that in the opinion of such counsel (which opinion and counsel shall be
reasonably satisfactory to the Company) such proposed Transfer does not involve
a transaction requiring registration or qualification of such Restricted Shares
under the Securities Act or the securities or "blue sky" laws of any state of
the United States. Such holder of Restricted Shares shall be entitled to
Transfer such Restricted Shares in accordance with the terms of the notice
delivered
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to the Company, if the Company does not reasonably object to such Transfer and
request such opinion within five days after delivery of such notice, or, if it
requests such opinion, does not reasonably object to such Transfer within five
days after delivery of such opinion. Each certificate or other instrument
evidencing the securities issued upon the Transfer of any Restricted Shares (and
each certificate or other instrument evidencing any untransferred balance of
such Registered Shares) shall bear the legend set forth in paragraph (b) above
unless (i) in such opinion of counsel registration of any future Transfer is not
required by the applicable provisions of the Securities Act or (ii) the Company
shall have waived the requirement of such legends.
(d) Notwithstanding the foregoing provisions of this Section, the
restrictions imposed by this Section upon the transferability of any Restricted
Shares shall cease and terminate when (i) any such Restricted Shares are sold or
otherwise disposed of (A) pursuant to an effective registration statement under
the Securities Act or (B) in a transaction contemplated by paragraph (c) above
which does not require that the Restricted Shares so transferred bear the legend
set forth in paragraph (b) hereof, or (ii) the holder of such Restricted Shares
has met the requirements for Transfer of such Restricted Shares under Rule
144(k) under the Securities Act. Whenever the restrictions imposed by this
Section shall terminate, the holder of any Restricted Shares as to which such
restrictions have terminated shall be entitled to receive from the Company,
without expense, a new certificate not bearing the restrictive legend set forth
in paragraph (b) above and not containing any other reference to the
restrictions imposed by this Section.
SECTION 13. TERMINATION.
This Agreement shall terminate and be of no further force or effect on the
date five years following the Registration Date.
SECTION 14. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the Company and the
Stockholders and, subject to Section 15, their respective successors and
assigns.
SECTION 15. ASSIGNMENT.
Each Stockholder may assign its rights hereunder to any of its affiliates
or to any person or entity that through the acquisition of Restricted Shares
from such Stockholder becomes a Stockholder (as defined herein); PROVIDED,
HOWEVER, that such person or entity
15
shall, as a condition to the effectiveness of such assignment, be required to
execute and deliver to the Company a counterpart to this Agreement agreeing to
be treated as a Stockholder whereupon such person or entity shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement with respect to such Restricted Shares.
SECTION 16. ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties with respect
to the subject matter hereof and supersedes all prior arrangements or
understandings with respect hereto, including without limitation the
Registration Rights Agreement, which shall be of no further force or effect. To
the extent (i) the acquisition of an aggregate of 700,000 shares of Common Stock
by one or more of the Investors from Mark Tilly and Alan Hyman, and/or (ii) the
purchase and sale of the Series C Preferred Stock to any Investors pursuant to
that certain Securities Purchase Agreement of even date herewith, would
otherwise constitute a breach of the Registration Rights Agreement, such breach
is hereby waived.
SECTION 17. NOTICES.
All notices, requests, consents and other communications hereunder to any
party shall be deemed to be sufficient if contained in a written instrument and
shall be deemed to have been duly given when delivered in person, by telecopy,
by nationally-recognized overnight courier, or by first class registered or
certified mail, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing by
the addressee to the addressor:
if to the Company, to:
SCC Technologies, Inc.
537 Congress Street
Portland, Maine 04101-3353
Fax: (207) 772-8596
Telephone: (207) 774-3244
Attention: President and Legal Department
with a copy to:
Lucash, Gesmer & Updegrove, LLP
16
40 Broad Street
Boston, MA 02109
Fax: (617) 350-6878
Telephone: (617) 350-6800
Attention: William Contente
if to the Investors, to the applicable address set forth on Schedule I:
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Fax: (312) 701-7711
Telephone: (312) 701-7100
Attention: Edward S. Best
and
O'Sullivan, Graev & Karabell, LLP
30 Rockefeller Plaza - 41st Floor
New York, New York 10112
Fax: (212) 408-2467
Telephone: (212) 408-2400
Attention: John J. Suydam
if to the Founders, to the applicable address set forth on Schedule I;
with a copy to:
Kirkpatrick & Lockhart LLP
75 State Street, Sixth Floor
Boston, Massachusetts 02109
Fax: (617) 951-9019
Telephone: (617) 951-9211
Attention: Stephen L. Palmer, Esq.; and
if to any other Stockholder, at his or its address set forth in the books of the
Company.
17
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (b) in the case of nationally-recognized
overnight courier, on the next business day and (c) in the case of mailing, on
the third business day following such mailing if sent by certified mail, return
receipt requested.
SECTION 18. MODIFICATIONS; AMENDMENTS; WAIVERS.
The terms and provisions of this Agreement may not be modified or amended,
except pursuant to a writing signed by the Company and the Stockholders holding
at least 80% of the Restricted Shares (based upon Common Stock equivalents) held
by all Stockholders who are parties to this Agreement.
SECTION 19. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each such
counterpart hereof shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
SECTION 20. HEADINGS.
The headings of the various sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
SECTION 21. SEVERABILITY.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and public
policies applied in each jurisdiction in which enforcement is sought.
Accordingly, if any provision of this Agreement would be held in any
jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
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SECTION 22. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York. The Company and Investors
irrevocably consent to the exclusive jurisdiction of the United States federal
and state courts located in New York in any suit or proceeding based on or
arising under this Agreement and irrevocably agree that all claims in respect of
such suit or proceeding may be determined in such courts. The Company and
Investors irrevocably waive the defense of an inconvenient forum to the
maintenance of such suit or proceeding. The Company and Investors further agree
that service of process upon the Company and Investors, respectively, mailed by
first class mail, shall be deemed in every respect effective service of process
upon the Company and Investors, respectively, in any such suit or proceeding.
Nothing herein shall affect the right of the Company or the right of any
Investor to serve process in any other manner permitted by law. The Company and
Investors agree that a final non-appealable judgment in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on such judgment or in any other lawful manner.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the date first written above.
SCC TECHNOLOGIES, INC.
By: /s/ Philip M. St. Germain
----------------------------
Name: Philip M. St. German
Title: CFO
DBV INVESTMENTS, L.P.
By: DRT Capital, L.L.C., its general partner
By: /s/ Glen Fuhrman
----------------------------
Name: Glen Fuhrman
_ Title: Manager
MSD PORTFOLIO L.P. - INVESTMENTS
By: MSD Capital, L.P., its general partner
By: /s/ Glen Fuhrman
----------------------------
Name: Glenn R. Fuhrman
_ Title: Managing Principal
VERMEER INVESTMENTS, LLC
By: /s/ Glen Fuhrman
----------------------------
Name: Glenn R. Fuhrman
Title: Manager
20
BLACK MARLIN INVESTMENTS, LLC
By: /s/ John C. Phelan
----------------------------
Name: John C. Phelan
Title: Manager
INSIGHT CAPITAL PARTNERS II, L.P.
By: InSight Venture Associates II, LLC, its
General Partner
By: /s/ Jeffrey L. Horing
----------------------------
Jeffrey L. Horing
Member
INSIGHT CAPITAL PARTNERS (CAYMAN) II, L.P.
By: InSight Venture Associates II, LLC, its
general Partner
By: /s/ Jeffrey L. Horing
----------------------------
Jeffrey L. Horing
Member
INSIGHT CAPITAL PARTNERS III, L.P.
By: Insight Venture Associates III, LLC, its
general partner
By: /s/ Jeffrey L. Horing
----------------------------
Name: Jeffrey L. Horing
Title: Managing Member
21
INSIGHT CAPITAL PARTNERS III-COINVESTORS, L.P.
By: Insight Venture Associates III, LLC, its
general partners
By: /s/ Jeffrey L. Horing
----------------------------
Name: Jeffrey L. Horing
Title: Managing Member
INSIGHT CAPITAL PARTNERS (CAYMAN) III, L.P.
By: Insight Venture Associates III, LLC, its
general partner
By: /s/ Jeffrey L. Horing
----------------------------
Name: Jeffrey L. Horing
Title: Managing Member
WI SOFTWARE INVESTORS LLC
By: Wexford Management LLC, its Investment Manager
By: /s/ Robert Holtz
----------------------------
Name: Robert Holtz
Title: Principal
IMPRIMIS SB, L.P.
By: Imprimis SB, GP LLC, its
general partner
By: /s/ Robert Holtz
----------------------------
Name: Robert Holtz
22
Title: V.P.
/s/ Alan Hyman
------------------------------------
Alan Hyman
/s/ Mark Tilly
------------------------------------
Mark Tilly
23
SCHEDULE I
Number of Common
STOCKHOLDER STOCK EQUIVALENTS
INVESTORS:
DBV Investments, L.P.
MSD Portfolio L.P. - Investments
Vermeer Investments, LLC
Black Marlin Investments, LLC
c/o MSD Capital, L.P.
780 Third Avenue - 43rd Floor
New York, New York 10017-2024
Fax: (212) 303-1622
Telephone: (212) 303-1668
Attention: Marc Lisker
InSight Capital Partners II, L.P.
InSight Capital Partners (Cayman) II, L.P.
InSight Capital Partners III, L.P.
InSight Capital Partners III-CoInvestors, L.P.
InSight Capital Partners (Cayman) III, L.P.
527 Madison Avenue, 10th Floor
New York, New York 10022
Fax: (212) 230-9272
Telephone: (212) 230-9210
Attention: Jeffrey Horing
24
WI Software Investors LLC
Imprimis SB L.P.
c/o Wexford Management LLC
411 West Putnam Avenue
Greenwich, CT 06830
Fax: (203) 862-7310
Telephone: (203) 862-7028
Attention: Robert Holtz
FOUNDERS:
Alan Hyman
SCC Technologies, Inc.
537 Congress Street
Suite 500
Portland, ME 04101
TEL: (207) 761-0079
FAX: (207) 772-8597
Mark Tilly
SCC Technologies, Inc.
537 Congress Street
Suite 500
Portland, ME 04101
TEL: (207) 761-0079
FAX: (207) 772-8597
25